Brass Tacks Post: We Made Up. Now What?

One
scenario that’s come up many times on both the prosecution and the
defense sides of the ethics fence is the attorney-client make-up. The
lawyer and client don’t communicate at all, or effectively, for a
while; the client has a misimpression of the status of a matter;
there is a noticeable, but harmless, period of inactivity in a
matter. The client, frustrated, writes to the ARDC and asks for an
investigation. Then, prior to the lawyer submitting a response, she
fixes the gap in communications is fixed with a status update from
the lawyer, or begins the process of wrapping up the delayed matter.
The client, realizing that everything has been cleared up with no
lasting damage, doesn’t want to make trouble and doesn’t see the need
to continue with the ARDC investigation.

Should
the client write to the ARDC and say “please drop the
investigation” or “I wish to withdraw my complaint”? Should the
lawyer tell the ARDC that the client has expressed such sentiments?
What (if anything) can be done to let the ARDC know that the
situation has been resolved?

It
seems logical to want to advise the ARDC that the parties to the
dispute no longer are in dispute. And yet to do so inartfully might
cause further problems for the lawyer. For example, a lawyer unhappy
about having to respond to a now-mooted client complaint might say
something in her response to the ARDC like “Having now informed
Client of the status of her matter, she has confirmed that she no
longer wishes to pursue this complaint. Please confirm that you will
close this investigation promptly.”

This
kind of response will cause concern at ARDC, partly for its
high-handed tone, but more importantly, for its suggestion of the
presence of a Rule 8.4(h) problem:

Rule
8.4 MISCONDUCT

It
is professional misconduct for a lawyer to: […]

(h) enter
into an agreement with a client or former client limiting or
purporting to limit the right of the client or former client to file
or pursue any complaint before the Illinois Attorney Registration and
Disciplinary Commission.

The
lawyer’s response does not per
se
suggest that she has violated Rule 8.4(h). There is no explicit
suggestion that she has entered into an agreement with Client
limiting Client’s right to pursue the ARDC matter. But it does create
the concern that the lawyer and client have spoken to one another
about the client abandoning the ARDC matter. That, in turn, is enough
to raise a question for the ARDC about whether the lawyer has in any
way – even impliedly – influenced the client’s decision with
regard to the ARDC case. The ARDC may also find it irksome as a
practical matter, since there is really no way for a client to
“withdraw” an ARDC investigation. Only the ARDC itself can
determine not to proceed.

The
lawyer should not put herself in that position, and it doesn’t serve
the client well either. If lawyer and client agree that the
professional relationship has been repaired, neither of them would
want to prolong the ARDC’s inquiry on a tangential subject. To avoid
such problems, a better way for the lawyer to address the client’s
newfound satisfaction would be simply to say, in the response, that
the relationship has been reestablished, and that communication
between lawyer and client is at an appropriate level. The ARDC will
send a copy of the lawyer’s response to the client, who can choose to
reply to the response, or to ignore it. Lawyers often ask whether
they can communicate with the client during this part of the process.
The answer is:

1. Yes, you can.
2. You should
   communicate with the client about the representation, even during an
   ARDC investigation (in most cases).
3. You should
   not
   communicate with the client about the ARDC investigation.

Rather,
the lawyer’s best course would be to ensure that it can always be
said that the client made her own decision about how to handle the
ARDC matter, with no input or influence by the lawyer. If the client
chooses not to reply to the lawyer’s response, the ARDC can then
proceed to determine what other information may be needed, or,
perhaps, to close the investigation.

That
is where everyone in this situation should want to be – it works
out most palatably and most efficiently for all concerned to avoid
discussing “withdrawing the ARDC complaint.” If it’s meant to go
away, it will, without unnecessary words being spoken.

photo credit: MicroAssist (CC)